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misnomer
MRG:
Though not related to the site you referenced, another such curiosity is listed below. I have included this document within your post as it does indirectly relate to CommonLaw and Sovereignty issues.
Credit goes to Ken T(ennision)? Of KenT_Legal
Jerry
"Rules of Civil Procedure -- Abatement of Misnomer
Names
§268, Rules of Civil Procedure 1
Names of Persons, -- The pleadings must specify the names of persons. The rule applies to –
a. Persons not parties to the suit, who are mentioned in the pleadings.
b. Parties to the action.
§269, Rules of Civil Procedure 1
Names of Persons other than Parties. – The names of all persons mentioned in the pleadings must be correctly stated, though they may not be parties to the suit.
Commentary – These rules call for strict accuracy in describing persons whose names are mentioned in the cause of action; and the reason is that any error in describing such persons may result in a fatal variance when proof is reached, since the correct identification of such persons by name becomes a matter of essential description, material to the merits of the case. In most jurisdictions, the law recognizes but one Christian name. Becker V. German Mut. Fire Ins. Co. of North Chicago, 68 Ill. 412; Elberson v. Richards, 42 N.J. Law, 69.
§270, Rules of Civil Procedure 1
Parties to the Action. – The plaintiff and defendant must be designated by their proper names, and not by words of mere description; and it must be shown whether they appear in the action in an individual or a representative capacity.
Commentary – Both plaintiff and defendant should be described by their Christian names and surnames, and, if either be mistaken or omitted, it is ground for plea in abatement.a Here, the objection can only be taken by a plea in abatement. It cannot be objected to as a variance at the trial.b
a Lebanon v. Griffin 45 N.H. 558; Flanders v. Stewartstown, 47 N.H. 549; Herf v. Shulz, 10 Ohio 263; Brent v. Shook, 30 Ill. 125; b Medway Cotton Manufactury v. Adams, 10 Mass. 360; Reid v. Lord, 4 Johns (N.Y.) 118.
Abatement
“Abatement is ordinarily a matter of right” -- Simmons v. Superior Court, C.A. 2d 119, 214 P. 2d 844.
“Abatement at law is the overthrow or destruction of a pending action apart from the cause of action : in equity the suspension of the proceedings. The term “abatement” is used, with reference to pending actions or suits, to designate the result upon a suit or action, of defects which vitiate the propriety of the suit as brought, in contradistinction to the existence or the statement of a cause of action; it looks to their effect; and consequently it is ordinarily defined descriptively in terms of the effect produced, so that the extending equitable doctrines to all suits or actions is spoken of.” -- 1 C.J.S. Abatement, 1a, p. 27, quoted in Burnand v. Irigoyen, 56 C.A. 2d 624, 629.
§225, Rules of Civil Procedure 1
Pleas in Abatement, -- A plea in abatement is one that shows some ground for abating or defeating the particular suit, without destroying the right of action itself. Matters in abatement include:
(e) Misnomer.
Commentary – If ground for abating the action does not appear on the face of the declaration or record, and extrinsic facts are necessary to be shown, a plea in abatement is essential.a Its effect is to defeat entirely that particular action, leaving the plaintiff free to assert his right of action in another suit, and in the same court. It entirely defeats the particular action since a new action may be brought.b
“A plea in abatement is one which shows some ground for abating or quashing the original declaration. The grounds for so abating are any matters of fact tending to impeach the correctness of that instrument. Pleas in abatement relate either to the person of the plaintiff, to the person of the defendant, or to the count or declaration. The effect of all pleas is that the particular action is defeated.”b
“A principle modern ground for abatement is: the fact that a plaintiff or defendant is a fictitious person c ; where the plaintiff or the defendant is misnamed” d .
a Greer v. Greer v. Young, 120 Ill. 184, 11 N.E. 167.
b Handbook of Common Law Pleading, by Benjamin Shipman; Third Edition by Henry Winthrop Ballentine, West Publishing Co., St. Paul, Minnesota 85-89.
c Com. Dig. “Abatement,” F; Doe v. Penfield, 19 Johns. (N.Y.) 308; Camden V. Robertson, 2 Scam. (Ill.) 507.
d Moss v. Flint, 13 Ill. 570; Pond v. Ennis, 69 Ill, 341; Springfield Consol. Ry. Co. v. Hoeffner, 175 Ill. 634, 51 N.E. 884; Proctor v. Well Bros. Co. of New York, 181 Ill. App. 468; Reid v. Lord, 4 Johns, (N.Y.) 118; Medway Cotton Manufactury v. Adams, 10 Mass. 360; Oates v. Clendenard, 87 Ala. 734, 6 South. 359; Norris v. Graves. 4 Strob. (S.C.) 32.
§229, Rules of Civil Procedure 1
Requisites of Pleas in Abatement. – Pleas in abatement must be certain and must give the plaintiff a better writ or bill. In pleading a mistake of form in abatement, the defendant must not only point out the plaintiff’s error, but must show him how it can be corrected, thus enabling him to avoid the same mistake in another suit regarding the same cause of action.
Commentary – They should be certain to every intent, and must, in general, give the plaintiff a better writ by so correcting the mistake objected to as to enable the plaintiff to avoid a repetition of it in forming his new writ or bill. Thus, if a misnomer in the Christian name of the defendant be pleaded in abatement, the defendant must in such plea show what his true Christian name is. Thus, if a better writ can be given, it shows that the plea should be in abatement, not in bar. a
When a plea in abatement is regularly put in, the plaintiff must reply to it, or object. The judgement for the defendant on a plea in abatement, whether it be on an issue in fact or in law, is that the writ or bill be quashed, or, that the complaint remain without day. b
“1. The judgment on a plea in abatement is either (1) that the writ or declaration be quashed cassetur breve, or narratio); (2) respondeat ouster; or (3) final (quad recuperet). Judgment is rendered either (1) without issue taken on the plea; or (2) with issue. Issues are either (1) issues in law; or (2) issues in fact”. c
a Com. Dig. “Abatement,” I, 1; Evans v. Stevens, 4 Term R. 227; Haworth v. Spraggs, * Term R. 515; Wilson v. Nevers, 20 Pick. (Mass.) 20; Heyman v. Covell, 36 Mich. 157; East v. Cain, 49 Mich. 473, 13 N.W. 822; American Exp. Co. v. Haggard, 37 Ill. 465, 87 Am. Dec. 257; Brown v. Gordan, 1 Greenl. (Me.) 165; Wadsworth v. Woodford, 1 Day (Conn.) 28; Hoffman v. Bircher, 22 W. Va. 537.
b 1 Tidd. Prac. (1st Am. Ed.) Pleas in Abatement, pp. 588 and 589.
c Myers & Waterson v. Hunter, Erwin & Co., 20 Ohio 382, 387, note.
Misnomer
“We are of the opinion that the word ‘misnomer’, which means naming amiss, is wide enough to cover the faulty indication of a Christian name by means of the initial: Vide, Bacon’s Abridgment, under misnomer. Initials are no name at all” --see 4 Bacon’s Abr. Of the Law, of Misnomer and Want of Addition; and Queen v. Plenty.
Misnomer. (compounded of the French Mes., which in composition always signifies amisse, and nomer, Latin, nominare,) the using [of] one name for another, a mis-terming or mis-naming. – Nomo-Lexicon, A Law Dictionary, Sherwin & Freutel, Publishers, Los Angeles (1970).
Misnomer is a good plea in abatement, for since names are the only marks and indicia which human kind can understand each other by, if the name be omitted or mistaken, there is a mistake against nobody. If the defendant has been arrested by the wrong name, the court will set aside the proceedings and discharge him if in custody. – 4 Bacon’s Abridgment, (D) of Misnomer; and, Want of Addition, p. 7.
A list of authorities used above:
Handbook of Common-Law Pleadings, Third Edition, West Publishing Co., St. Paul, Minnesota.
Brief on Pleading in Civil Cases, Volumes I and II, Austin Abbott, Rochester, New York.
Rules of Civil Procedure, American Judicature Society.
Code Remedies, Remedies and Remedial Rights by the Civil Action, Fourth Edition, T.A. Bogle, Boston, Massachusetts.
Treatise on the Principles of Pleadings in Civil Actions, Sixth Edition, A.P. Will, Albany, New York.
Encyclopedia of Pleading and Practice, Twenty-two Volumes, Northport, New York."
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